H.B. 3360 and S.B. 72: Assessing Prejudgment Interest to Personal Injury and Wrongful Death Verdicts in Illinois

By Nicholas J. Lynn

On March 25, 2021, Illinois Governor J. B. Pritzker vetoed a bill that would assess prejudgment interest to personal injury and wrongful death verdicts. The bill originally was reported as House Bill 3360 (“H.B. 3360”) and more recently passed the Legislature as a compromised plan, S.B. 72, which reduced the prejudgment rate from 9% to 6 %, allowing plaintiffs with personal injury or wrongful death verdicts to recover the interest on all damages except punitive damages, sanctions, statutory attorneys’ fees, and statutory costs. On January 13, 2021, H.B. 3360 passed the Democrat-controlled chambers of the General Assembly. H.B. 3360 provided 9% prejudgment interest to personal injury and wrongful death verdicts to be calculated annually from the time the defendant was placed on notice of the injury to the date of judgement. Illinois remains one of just four States not to have some form of prejudgment interest available for trial-winning plaintiffs.

Considerations for Seniors Housing Communities and COVID-19 Vaccines

More than nine months after start of the coronavirus pandemic, the beginning of the end finally appears to be within sight. Novel vaccines have shown tremendous promise in clinical trials, and the United States Food and Drug Administration (FDA) has granted Emergency Use Authorizations (EUAs) to the first two COVID-19 vaccines—one developed by a collaboration between Pfizer and BioNTech SE and the other developed by Moderna. The first Americans received initial doses of the Pfizer-BioNTech vaccine on Monday, December 14, 2020—a remarkably quick turnaround from the initial identification of the SARS-CoV-2 virus at the end of 2019 to the delivery of the first doses of a vaccine one year later.

While the efforts to bring vaccines to long-term care communities will not begin in earnest until December 21 or December 28, residents of long-term care communities in a handful of states have begun to receive COVID-19 vaccines. To that end, although companies in the seniors housing industry are likely well on their way to preparing for the upcoming vaccinations in their communities, this Special Issue Brief provides some background on the COVID-19 vaccine approvals and an overview of some of the key issues operators should make sure to consider.

To read the full text of this article by Duane Morris attorney Alison T. Rosenblum, please visit the American Seniors Housing Association website.

Office of Inspector General Issues Special Fraud Alert on Speaker Programs

On November 16, 2020, the Department of Health and Human Services Office of Inspector General (OIG) issued a Special Fraud Alert addressing speaker programs presented by pharmaceutical and medical device companies. Such programs, at which companies may pay physicians or other health care professionals (HCPs) for speeches or presentations about drugs and devices in addition to providing remuneration to attendees, are frequently sponsored by pharmaceutical and device companies seeking to provide education regarding their products. Highlighting what it called “inherent fraud and abuse risks,” OIG’s Special Fraud Alert expressed concerns surrounding the offer or payment of remuneration from pharmaceutical and device companies to physicians or other HCPs associated with such programs.

To read the full text of this Duane Morris Alert, please visit the firm website.

Could Medical Device Manufacturers Accelerate the FDA Approval Process by Using COVID-19 Data?

Medical device shortages and shortcomings during the COVID-19 pandemic have led the Food and Drug Administration (FDA) to grant Emergency Use Authorization (EUA) to many medical devices manufacturers. Were it not for these EUAs, these manufacturers would be unable to market their devices, as their FDA applications would still be pending. Once the present “emergency” ends, these EUAs will expire, and manufacturers will again be unable to market their devices for the indications cleared under the EUA.

Still, the real-world evidence (RWE) gained about these devices while marketed under the EUA need not be lost with the passing of the pandemic. Once the pandemic ends, manufacturers should be able to use the data collected to support their pending applications for market clearance and for new indications for already-cleared devices.

To read the full text of this article by Duane Morris partners Frederick R. Ball and Erin M. Duffy, please visit the Wharton Health Care Management Alumni Association website.

Healthcare Employers Who Have Excluded Employees from COVID-related Leave Benefits under FFCRA Must Reconsider after USDOL Amends Temporary Regulations

By Jennifer Long and Nicholas J. Lynn

The United States Department of Labor’s (DOL) initial temporary regulations that interpreted and implemented the Families First Coronavirus Response Act (FFCRA) permitted employers to elect to exclude healthcare provider employees from eligibility for the COVID-related leave benefits made available under FFCRA. The initial DOL regulations provided a broad definition of healthcare provider, allowing most employees working for a healthcare provider employer to be excluded from FFCRA leave benefits, including Paid Sick Leave (PSL) and Extended Family and Medical Leave (EFMLA). After a federal district court decision struck down parts of the DOL’s prior final rule, the DOL now has issued revised regulations, which became effective on September 16, 2020, and expire along with the FFCRA on December 31, 2020. For a detailed discussion of the FFCRA requirements and the DOL’s revised temporary regulations, see our April 3, 2020 Alert and our September 17, 2020 Alert. Continue reading “Healthcare Employers Who Have Excluded Employees from COVID-related Leave Benefits under FFCRA Must Reconsider after USDOL Amends Temporary Regulations”

Distribution of Drug Samples During COVID-19: FDA Issues Temporary Policy

In response to the ongoing COVID-19 public health emergency, the United States Food and Drug Administration (FDA) issued a temporary policy related to the distribution of drug samples. Recognizing the unique challenges currently facing manufacturers that distribute drug samples as part of marketing efforts and the healthcare providers requesting those samples for patients, the FDA is temporarily easing certain requirements of the Prescription Drug Marketing Act.

To read the full text of this Duane Morris Alert, please visit the firm website.

FDA Takes Steps to Enhance Availability of Safe and Effective Face Masks

Over the past week, the U.S. Food & Drug Administration (FDA) has taken a number of steps to enable manufacturers and distributors of face masks to more efficiently make their products available to the marketplace. FDA has accomplished this by establishing criteria that would allow manufacturers to bypass normally required (and often time-consuming) regulatory review.

To read the full text of this Duane Morris Alert, please visit the firm website.

CARES Act Provider Relief Fund $30 Billion Distribution Announced by HHS

Immediate funds are now available for providers to receive a cash influx at a critical time. The challenge will not be receiving the funds, but rather keeping the funds after a future audit of compliance with the terms and conditions.

On April 10, 2020, the United States Department of Health and Human Services (HHS) announced the immediate distribution of an initial $30 billion in relief funding to providers in support of the nationwide COVID-19 response. The distribution is part of the $100 billion provider relief fund included in the Coronavirus Aid, Relief and Economic Security (CARES) Act recently passed by Congress. Importantly, HHS has noted that these are payments, not loans, to healthcare providers, and will not need to be repaid unless the provider does not comply with the terms and conditions.

To read the full text of this Duane Morris Alert, please visit the firm website.

Expansion of Immunity Protections for Covered Countermeasures and Healthcare Volunteers Under CARES Act

As discussed in our March 18 Alert, the Secretary of Health and Human Services has issued a declaration authorizing drugs, devices and biologics used to treat or mitigate COVID-19 as covered countermeasures under the Public Readiness and Emergency Preparedness (PREP) Act. Following Secretary Azar’s declaration of a public health emergency, covered persons may obtain immunity under federal law for all claims arising from manufacturing, distributing or administering covered countermeasures, subject to the conditions laid out at 42 U.S.C. § 247d-6d, the declaration and other applicable regulations.

Subsequent to our previous Alert, President Trump signed into law the Coronavirus Aid, Relief and Economic Security Act (CARES Act), which expanded the covered countermeasure protections offered by the PREP Act.

To read the full text of this Duane Morris Alert, please visit the firm website.

Congress Investigates “Surprise Billing” for Out-of-Network Doctors at In-Network Facilities

By Ryan Wesley Brown

In December, several members of the House and Senate expanded a bipartisan investigation into what is commonly referred to as “surprise billing.” Their investigation focuses on the practice of billing patients for medical services when patients receive care by out-of-network physicians at an in-network facility. The legislators sent letters to several of the largest insurers and physician staffing companies in order to gather more information about this practice.

In these letters, legislators sought further information about the reasons for surprise bills as well as “the current incentives behind the negotiations between providers and insurers.” The letters focus particularly on those services that are “outsourced” by hospitals to physician staffing companies. Generally, these physician staffing companies and hospitals will have negotiated separately with insurers, resulting in a discrepancy between insurance coverage for the facility versus the provider.

These letters follow earlier efforts by legislators to investigate private equity firms with ownership interests in physician staffing and emergency transportation companies.

At the time of this investigation, several states have implemented laws to prohibit or regulate this practice, and congressional debate on the topic is ongoing. The bipartisan support for these investigations suggests that there is some momentum in Congress for passing federal legislation, but it is not yet clear what form that will take and where partisan lines may be drawn.

Federal legislation in this area may ultimately regulate ERISA plans. This is significant because state laws are generally preempted by ERISA with respect to surprise billing and only some states have allowed ERISA plans to “opt in” to their surprise billing schemes.

We will continue to closely follow these developments at the federal level along with our ongoing analysis of state-level efforts to regulate surprise billing practices.